PETER HENNER ATTORNEY AND COUNSELOR AT LAW, P.O. BOX 326 CLARKSVILLE, NEW YORK 12041-0326 (518) 423-7799 Fax: (518) 768-8235 peter@peterhenner.com WEB SITE: peterhenner.com * Via e-mail FOIL@esd.ny.gov recordsaecess(@dps.ny.gov March 28, 2016 Records Access Officers Empire State Development New York State Department of Public Service Re: FOIL Request: Time Warmer Cable — Charter Communications broadband franchise information Dear Records Access Officers: Please consider this letter as a formal request, on behalf of my clients, Alliance for Environmental Renewal, New Scotland Town Supervisor Douglas LaGrange, Nancy Lawson, Douglas Bullock, Jim and Lynn Cable, Priscilla and Robert Hannan, Ir. for access to certain records within the possession of both the New York State Department of Public Service and the Governor's Broadband Program Office (“BPO”) (which is within the Empire State Development), pursuant to Article 6 of the Public Officers Law (the Freedom of Information Law). Although this request is being made to both DPS and BPO, each agency is responsible to make its own determination with respect to it. Specifically, I am seeking access to the unredacted broadband franchise information that was filed by Time Warner Cable and Charter Communications (“the Companies”) in PSC Case number 15-M-0388 on February 18 or 19, 2016. According to the cover letter submitted by the ‘Companies, the unredacted version of this information was also submitted to the BPO. The Companies requested that both the BPO and the PSC treat the information that was submitted as “confidential commercial information” and also maintain that it is entitled to be ‘exempt from disclosure because it allegedly qualifies as a “trade secret.” Therefore, the Companies argue that the information should be exempted from disclosure under FOIL pursuant to §§ 87 (2) (d) and 89 (5) (a) (1) of the Public Officers Law. Section 89 (5) sets forth the procedure to be followed in the event that a person requests access to a record that, like the information at issue, has been submitted with a claimed exemption from disclosure under §§ 87 (2) (d). Specifically, the agencies maintaining the record, in this case both the PSC and the BPO, have an obligation to notify the Companies, of theirintention to determine whether to grant the exception from disclosure, to permit the person requesting the exception to submit a written statement supporting their position within 10 business days, and to issue a written determination, within seven business days after receipt of such a statement, as to whether the exception from disclosure will be terminated or continued. As is required by §89(3), please acknowledge this request within five business days. Although this section also requires an agency to advise to the date when such records may be made available, or when this request will be denied, either in whole or in part, I recognize that the granting or denial of the request will depend upon the schedule required by §89(5), In accordance with the 2005 amendment to §89, I will anticipate that access to these records will be granted within 20 business days of the acknowledgment, unless I am provided with a written explanation of why access cannot be granted within that time. Lam requesting this information on behalf of my clients because I believe that the unredacted information that the Companies submitted should not be subject to any trade secret or confidential commercial information protection. ‘The information as a whole is submitted to comply with the PSC’s January 8, 2016 which approved the merger of Time Warner and Charter Communications, which required the merged company to extend service to up to 145,000 housing units within Time Wamer existing franchise territories which do not presently receive service. The information consists of a list of municipalities, listed by County, where Time Warner presently holds a franchise and the number of unserved or “unpassed” housing units in each municipality. All of ‘Time Warner's franchise agreements with municipalities are filed with the Public Service Commission. Therefore, a researcher could ascertain, albeit with some difficulty, the names of all of the municipalities that are listed in the information that has been filed. Since this information is, in effect, public, there is no reason to withhold it from disclosure. The crucial information in the document that has been filed is the number of unserved housing units in each municipality. As the Companies state, this information is not available to anyone outside of the Companies, Nevertheless, there is no reason to believe that the disclosure of this information will cause any competitive harm to the Companies, or that it represents a trade secret. The Companies have been ordered to extend service to these unserved housing units at no cost, Furthermore, these unserved housing units are located in municipalities where, in many if not all cases, Time Warner is presently the only cable television/broadband provider. Therefore, the Companies will not be competing with any other provider. The Companies assume, without explanation, that their competitors will somehow be able to derive information about their cost of doing business from the mere fact that there are a certain number of unserved housing units in a particular municipality. Even if the Companies’ competitors could somehow derive information about the cost of doing business from the disclosure of the number of housing units in a particular municipality, it is also true that the Companies will be required to connect these housing units pursuant to thePSC order, regardless of cost. Therefore, the Companies will not be competing with any other provider with respect to the costs of these connections. Disclosure of the information that has been submitted is critical to enable the municipalities where Time Warner presently holds franchises to monitor the Companies compliance with the January 8 Order. A particular municipality needs to know how many unserved units exist within its borders, and everyone concerned with broadband expansion needs to know whether the total number of unserved units within Time Warner's present franchise areas is, in fact, less than 145,000 units subject to the PSC order. If the number is greater than 145,000, then there will be additional units in present TimeWarner franchise territories that will not receive broadband service as a result of the PSC Order. These units have also been excluded from any financial assistance from the BPO (because they are presumably going to be handled by the PSC order) Therefore, if such units exist, there will be mechanism to provide funding for them to receive broadband, either from the PSC order or from the BPO. Ata minimum, the total number of housing units, information that can be readily generated by summing all of the unserved units listed in the information submitted by the Companies in their February 18 filing, should be disclosed ‘The information that was filed consists of a 15 page document. If this request for disclosure is granted, and the claimed exception from disclosure terminated, it should be filed on the PSC website for Case No. 15-M-0388 in its unredacted form. Lam also requesting that you provide me with a copy of the written response, if any, that you receive from the Companies. If you have any questions with respect to this request, or if there is anything that I can do to expedite the processing of it, please do not hesitate to give me a call. Very truly yours, GA fa Peter Henner